What Documents Can Be Used To Prove Identity And Work Authorization For Employment?
The primary purpose of the I-9 form is to make sure employers are following the law and hiring only those authorized to work in the U.S. Specifically, the I-9 creates a paper trail between the employer and any new hire, ensuring they do their due diligence in only hiring documented, legal workers. As this is a relatively new approach to curbing illegal immigration, and has only been enforced sporadically, it’s natural for employers to experience some confusion as to how they can ensure I-9 compliance and mitigate any mistakes they make during the I-9 process. Fortunately, there is little confusion regarding which documents can be used to prove identity or work authorization.
Immigration and Customs Enforcement, or ICE, provides a list of acceptable documents for establishing identity and employment authorization. A new hire can either provide a single document that proves both, or a document that establishes identity and a document that proves work authorization. Here’s what that list of acceptable documents for employment looks like:
List A – Documents that establish identity and employment authorization:
- A Permanent Resident Card
- An unexpired Temporary Resident Card
- An unexpired U.S. Passport
- A U.S. Passport Card
- An unexpired Employment Authorization Card
- An unexpired foreign passport with an I-551 stamp, or with a Form I-94. If the employee is only authorized to work with restrictions, they must attach any documentation that demonstrates unexpired employment authorization.
- An unexpired Employment Authorization Document provided by the U.S. Department of Homeland Security. This should include a photograph of the employee.
List B – Documents that confirm identity only:
- A driver’s license or ID card that is issued by a U.S. state or U.S. possession. It should contain a photograph and essential identifying information, including name, date of birth, address, height, gender and eye color.
- A federal or state ID card. It should come with a photograph and identifying information such as name, date of birth, height, gender, eye color and address.
- A school ID card with a photograph
- A Voter Registration Card
- A U.S. Armed Services ID card or draft record
- A Native American tribal document
- A U.S. Coast Guard Merchant Mariner Card
- A driver’s license provided by the Canadian government
- A trusted traveler document, such as Global Entry, NEXUS or SENTRIIf the employee is under the age of 18, they can satisfy the identification requirement using one of the following documents:
- A report card or school record
- A daycare record
- A doctor or hospital record
List C – Documents that confirm work authorization only:
- A U.S. Social Security card provided by the Social Security Administration. If, however, there is an indication that restricts employment, this will not satisfy work authorization requirements.
- A birth certificate provided by the U.S. State Department
- An original birth certificate or a certified copy bearing an official seal. This birth certificate must be from a U.S. state or possession.
- A U.S. Citizen ID Card
- A Certificate of U.S. Citizenship
- A Certificate of Naturalization
- A Native American tribal document
- An unexpired work authorization card provided by the U.S. Department of Homeland Security.
- A Consular Report of Birth Abroad
If an employee needs to undergo reverification, U.S. passports do not need to be reverified, nor do documents from List B. In general, reverification concerns work authorization documentation only.
Should Employers Make Copies Of Any Documents Submitted For The I-9 Form?
This is a dilemma for employers, and there’s no easy answer to the question, as there are benefits and potential risks in copying employee documentation for placement with their I-9 form.
Many of the mistakes related to the I-9 process are the result of inaccurately recording the employee’s personal information, or accepting a false document. It’s tough for employers to catch every fraudulent document that may come their way, but employers are expected to make a reasonable effort in verifying that a document is legitimate.
To mitigate the risk of recording the wrong information on an I-9 form, employers may make copies of any submitted documentation, and place it with the form. If there are any discrepancies found during an I-9 audit, ICE will not consider the copied documents an affirmative defense against penalties. However, and ICE has acknowledged this, the copied documents will serve as a mitigating factor in assessing penalties, so while fines will still be levied, they may be reduced. Further, the presence of copied documentation shows good faith toward ICE that the employer made an honest attempt to identify the employee. This can be an advantage if the company is accused of knowingly hiring an undocumented worker. The documents will argue otherwise, which may reduce the chances of significant financial or criminal penalties.
Finally, if human resources has access to the copied documentation, it’s much easier for the company to perform its own internal I-9 audits. Some states also require employers to copy documentation for the purposes of complying with E-Verify.
However, it’s not all positive on this front. If an employer chooses to copy an employee’s documentation, they must get a copy of every employee’s documentation, or they risk being accused of discriminatory practices. Depending on the company’s size, this could be a logistical nightmare. And if an employer copies submitted documentation, they must be extra careful that the documentation is legitimate. If the document is clearly falsified, ICE will see the copy and consider it irrefutable evidence that the company was negligent in its I-9 handling. That could worsen any penalties.
How the company retains any documentation is up to its leaders, but careful examination of any submitted documentation is not. As long as a business has its I-9 processes down and communicates with its new hires, there should be no missed deadlines and no fraudulent documents slipping through unnoticed.